DEPARTMENT 205 LAW AND MOTION RULINGS
Case Number: 23SMCV03909 Hearing Date: September 18, 2024 Dept: 205 HEARING DATE: September 18, 2024 | JUDGE/DEPT: Moreton/Beverly Hills, 205 | CASE NAME: The Real A Team Corporation v. Independence HCM, Inc., et al. | COMP. FILED: August 21, 2023 |
PROCEEDINGS: REQUEST FOR ENTRY OF DEFAULT JUDGMENT MOVING PARTY: The Real A Team Corporation RESPONDING PARTY: Independence HCM, Inc. and Dov Jacobs Plaintiff The Real A Team Corporation is a medical and administration consulting firm that works with home health companies, hospice groups, assisted living companies, board and care homes and skilled nursing facilities to help them with placement, compliance, billing, and recertification mostly as it relates to Medicare and Medi-Cal issues. (Imhotep Decl. ¶2.) Defendants Independence HCM, Inc., Dov Jacobs and non-party Legacy Plus Unlimited d/b/a Alta Vista Health Services (“Legacy”) provide in-home care for patients who are given a prescription by their physician for nurse visits, physical therapy, occupational therapy, social worker visits and similar services that are then billed (when coded correctly) to Medicare or other insurance. (Id. ¶3.) From May 2017 through August 2018, Plaintiff entered into four (4) service agreements with Legacy and Defendants. (Id. ¶4.) Plaintiff fully performed its obligations under the service agreements, but Legacy and Defendants failed to pay Plaintiff in full for the services rendered. (Id. ¶5.) According to the terms of the agreements, Plaintiff filed a Demand for Arbitration with JAMS against Legacy. (Id. ¶6.) Plaintiff later filed an amended Demand for Arbitration adding Defendants Jacobs and Independence. (Id.) The matter was submitted to arbitration before Hon. Linda L. Miller, Ret. as arbitrator (“Arbitrator”). (Id. ¶7.) After the arbitration hearing, the Arbitrator issued an award in favor of Plaintiff and against Legacy in the amount of $192,424.21 (“Arbitration Award”). (Id. ¶9.) Plaintiff filed a Petition to Confirm Arbitration Award (“Petition”) in the Superior Court of California, County of Los Angeles, Case No. 21STCP02134, seeking to confirm the award against Defendants as well as Legacy. (Chugh Decl. ¶11.) The Court confirmed the Arbitration Award of $192,424.21 against Legacy. (Id. ¶12.) After obtaining Order confirming the Arbitration Award, Plaintiff became aware that Legacy neither has any business assets nor any bank account. (Id. ¶13.) Plaintiff now seeks judgment against Defendants Jacobs and Independence as alter egos of Legacy. Plaintiff provides the following facts in support of its alter ego claim: Defendant Jacobs, as the owner of both Legacy and Independence, caused the entities to be operated as one and disregarded all corporate formalities. (Imhotep Decl. ¶10.) Defendants also represented to Plaintiff that Defendants and Legacy are one and the same, and that Defendants would be liable for Legacy’s debts and obligations to Plaintiff. Employees of Independence frequently performed work for Legacy. (Id.) Further, Plaintiff frequently had to communicate and deal with employees of Independence in rendering services to, and collecting payments from, Legacy. (Id. ¶11.) Independence also managed the accounts of Legacy and, on numerous occasions, made payments to Plaintiff on behalf of Legacy. (Id.) Additionally, Defendants commingled and transferred funds among the accounts of Defendants and Legacy for no legitimate or documented reasons. (Id. ¶12.) In some instances, Defendant Jacobs used funds from the business accounts of Legacy and Independence to pay his personal expenses. (Id.) Defendants Jacobs and Independence, acting in concert with Legacy, engaged in fraudulent activities to avoid their contractual and legal obligations. (Id. ¶13.) Specifically, they intentionally misrepresented their authority and contractual obligations, leading Plaintiff to believe that they were responsible for the services rendered and would be held liable for them. (Id.) Defendants Jacobs and Independence also actively participated in the negotiations, representations, management and other actions related to the service agreements with Plaintiff, and received benefit from the services rendered by Plaintiff under the service agreements. (Id. ¶14.) On August 21, 2023, Plaintiff filed a Complaint against Defendants. The Complaint alleges 13 claims for (1) Negligent Misrepresentation, (2) Breach of the Implied Covenant of Good Faith and Fair Dealing, (3) Unjust Enrichment, (4) Intentional Misrepresentation, (5) Fraudulent Inducement, (6) Violation of California Business & Prof. Code § 17200, (7) False Promise, (8) Civil Conspiracy, (9) Breach of Contract, (10) Common Count: Account Stated, (11) Common Count: Open Book Account, (12) Concealment, and (13) Alter Ego Liability. The Complaint seeks $456,722.75 in damages, plus interest, punitive damages and attorneys’ fees. Plaintiff filed a proof of service showing Defendants were personally served with the Complaint on October 3, 2023. Defendants were obligated to respond. Defendants did not do so. Plaintiff successfully requested the entry of Defendants’ default, which was entered by the Clerk’s Office on February 14, 2024. Plaintiff requested a default judgment on May 23, 2024. Plaintiff served Defendants by mail with both the Request for Entry of Default and Request for Default Judgment. Defendants have not appeared. Default judgment against Defendants for a total of $252,708.67, which is comprised of: (1) $192,424.21, for damages, (2) $57,039.75 for attorneys’ fees, and (2) $3,244.71, for costs. Code Civ. Proc. § 585 sets forth the two options for obtaining a default judgment. First, where the plaintiff’s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting, additional evidence, or the exercise of judgment to ascertain, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively establish his entitlement to the specific judgment requested.¿ (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.) Section 585 also allows for interest, costs and attorney fees, where otherwise allowed by law. (Code Civ. Proc. § 585(a).) Multiple specific documents are required, such as: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code Civ. Proc. § 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.) Here, Plaintiff has not properly substantiated its claim for $57,039.75 in attorneys’ fees. Plaintiff has not explained the contractual or statutory basis for such fees. Where a request for attorneys’ fees is based on a contractual provision, the specific provision must be cited. (Local Rule 3.207.) Plaintiff’s counsel also did not file a declaration setting forth her hourly rate and the number of hours expended. Accordingly, the Court cannot properly assess the fee request. In addition, Plaintiff has submitted the declaration of its CEO, Michelle Imhotep, but it is not clear from the declaration how Ms. Imhotep has personal knowledge of the facts alleged in her declaration. For example, she attests that “[i]n some instances, Defendant Jacobs used funds from the business accounts of Legacy and Independence to pay his personal expenses.” But how would she know this fact, simply by virtue of being the CEO of Plaintiff? “Where the facts stated do not themselves show it, such a bare statement [that the affiant has personal knowledge] has no redeeming value and should be ignored.” (Snider v. Snider (1962) 200 Cal.App.2d 742, 754.) For the foregoing reasons, the Court DENIES Plaintiff’s request for entry of default judgment.
Case Number: 23SMCV05413 Hearing Date: September 18, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 GARTH FISHER, M.D., et al., | Hearing Date: September 18, 2024 PLAINTIFFs’ motion for leave to file SECOND amended complaint |
This is a medical malpractice case. Plaintiffs Ashley Matthau and her mother, Katherine Parnello had a long standing relationship with Defendant Dr. Garth Fisher. He had done multiple cosmetic surgeries for both Plaintiffs, and they had become friends with him and members of his staff. (Parnello Decl. ¶3; Matthau Decl. ¶3.) Because of this history, Plaintiffs trusted Dr. Fisher without question. (Parnello Decl. ¶4; Matthau Decl. ¶4.) In or about 2022, Ms. Matthau was diagnosed with a form of breast cancer, which is rare and difficult to treat. (Parnello Decl. ¶5; Matthau Decl. ¶5.) Dr. Fisher’s office recommenced that Ms. Matthau consult with Dr. Kristi Funk, a noted oncologist who specializes in the treatment of breast cancer. (Parnello Decl. ¶6; Matthau Decl. ¶6.) Dr. Funk is a “member of the American College of Surgeons, the American Society of Breast Surgeons and the American College of Lifestyle Medicine.” (Funk Depo. 13:12-14.) Plaintiffs selected Dr. Funk to evaluate the breast mass. (Funk Depo. 16:18-17:18.) The diagnosis was a Phyllodes tumor. (Funk Depo. 26:4-28:25.) In removing a phyllodes tumor, it is important to leave clear margins, which is a “rim of healthy, normal benign tissue around the diseased tissue so it's clear from disease.” (Funk Depo. 37:5-38:4.) The initial plan was for Ms. Matthau to coordinate her care between Dr. Funk and Dr. Fisher. The first step was for Dr. Funk to surgically remove the cancerous material at St. John’s Hospital, using advanced medical technology to determine the margins necessary to maximize a successful outcome. The second step was for Dr. Fisher to do the cosmetic work to restore Ms. Matthau’s breasts to the way they appeared before surgery. (Parnello Decl. ¶8; Matthau Decl. ¶8; Funk Depo 23:1-18, 24:12-25:3, 30:21-31:7.) Dr. Fisher assured Plaintiffs that the appearance after he was finished would be nearly identical to the appearance before the cancer surgery. (Parnello Decl. ¶9; Matthau Decl. ¶9.) Shortly before the procedure, Dr. Fisher’s office unilaterally, and without informing Plaintiffs beforehand, told Dr. Funk’s office that she was not needed and Dr. Fisher would be the one to remove the mass. The change in plan was not Dr. Funk’s choice. This decision was made by Dr. Fisher, without input or agreement by Dr. Funk. At that time, Dr. Fisher did not inform Plaintiffs of the change. (Parnello Decl. ¶10; Matthau Decl. ¶10.) Instead of telling Plaintiffs that he made a unilateral decision, Dr. Fischer misrepresented that Dr. Funk had agreed for him to do the entire procedure without her. Plaintiffs learned later that this statement was false and that Dr. Funk had not been asked her opinion and did not agree to be excluded. (Parnello Decl. ¶11; Matthau Decl. ¶11.) Plaintiffs were not pleased with this change. Dr. Funk was selected because of her expertise in removing breast cancer. Plaintiffs’ understanding was that she, unlike Dr. Fisher, was experienced and qualified in that surgical procedure and had access to medical equipment designed to enhance the probability of a successful outcome. Dr. Fisher’s practice was focused on cosmetic surgeries, and while he was one of the top breast implant surgeons at the time, he was not an oncologist. (Parnello Decl. ¶12; Matthau Decl. ¶12.) Moreover, instead of performing the procedure at a hospital where they had the necessary equipment to calculate the proper margins, Dr. Fisher switched the location to his own surgical center. (Parnello Decl. ¶14; Matthau Decl. ¶13.) Plaintiffs relied on Dr. Fisher’s representation that Dr. Funk agreed to the change in who was to remove the tumor (from Dr. Funk to Dr. Fisher) and that Dr. Funk agreed that the procedure should be done at Dr. Fisher’s surgery center and not a hospital. (Parnello Decl. ¶15; Matthau Decl. ¶14.) This reliance was reasonable based on Plaintiffs’ extensive history with Dr. Fisher. (Parnello Decl. ¶16; Matthau Decl. ¶15.) The surgical procedure was not successful. Dr. Fisher failed to take out sufficient margins, leaving cancer in Ms. Matthau’s body. (Parnello Decl. ¶17.) The pathology report indicated that he did not remove all of the tumor. (Parnello Decl. ¶17.) Dr. Fisher later admitted his fault and apologized by text. (Parnello Decl. ¶17; Ex. 2.) Ms. Matthau returned to Dr. Funk because “the excision performed by Dr. Fisher upgraded the phyllodes from benign to borderline, and the margins were not clear.” (Funk Depo. 44:15 to 45:14.) As a result, a second surgery was scheduled with Dr. Funk and at the hospital. (Parnello Decl. ¶19.) This second surgery would not have been necessary if clear margins had been taken in the first surgery. (Funk Depo. 45:16-25.) Ms. Matthau lost more tissue because the procedure had to be repeated. (Funk Depo. 48: 13-17.) On these facts, the operative first amended complaint alleges claims for (1) medical malpractice/negligence, (2) lack of informed consent, (3) breach of contract, (4) medical battery, (5) fraud, (6) breach of fiduciary duty, (7) invasion of privacy and (8) negligent infliction of emotional distress. This hearing is on Plaintiffs’ motion for leave to file a Second Amended Complaint (“SAC”), to add a claim for punitive damages. Plaintiffs argue that based on their declarations and the deposition testimony of Dr. Funk, they have established that there is a substantial probability they will prevail on their fraud claim, thus entitling them to punitive damages. Code of Civ. Proc. § 473(a)(1), provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”¿ Under California Rules of Court Rule, Rule 3.1324, subdivision (a),¿a motion to amend a pleading shall:¿ (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;¿ (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and¿ (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.¿¿ In addition, under California Rules of Court, Rule 3.1324, subdivision (b),¿a¿separate declaration¿must accompany the motion and must specify:¿¿ (1) the effect of the amendment;¿ (2) why the amendment is necessary and proper;¿ (3) when the facts giving rise to the amended allegations were discovered; and¿ (4) the reasons why the request for amendment was not made earlier.¿ On a motion to add a punitive damages claim against a healthcare provider, Code Civ. Proc. § 425.13¿applies. Section 425.13 states the following: In any action for damages arising out of the processional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to¿Section 3294¿of the Civil Code. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the¿[*6]¿¿matter is first set for trial, whichever is earlier. According to our Supreme Court, the purpose of¿Section 425.13 (a)¿is to protect health care providers from the onerous burden of defending against meritless punitive damage claims. (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 709.) Section 425.13(a)¿requires a plaintiff to both state and substantiate a legitimate, triable punitive damages claim. It operates like a “summary judgment in reverse, placing the burden on the plaintiff to present a ‘legally sufficient’ claim and to undergo a procedure like the one employed in the determination of a motion for summary judgment.” (Id. at 719, fn. 6.) In addition, Plaintiff's prima facia case must establish malice, oppression or fraud by clear and convincing evidence. The Court must view Plaintiffs evidence through the prism of the “clear and convincing” evidentiary burden which he ultimately will have to meet. (Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539-540.) In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute,¿Civil Code section 3294. (College. Hospital, Inc., 8 Cal.4th at 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., 8 Cal.4th at 725.) “A conscious disregard of the safety of others may constitute malice within the meaning of¿section 3294¿of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) “As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., 8 Cal.4th at 725.) The statute's reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25¿Cal.App.4th¿1269, 1287.) Plaintiffs’ declaration in support of the motion meets the requirements under Cal. Rules of Court, Rule 3.1324. Plaintiffs’ counsel identifies the specific amendment and their effect (to add a claim for punitive damages); explains why the amendment is necessary and proper (leave to amend is required before Plaintiffs can state a claim for punitive damages on a medical malpractice complaint); when the facts supporting the amendment were discovered (since the start of the case); and why the amendment could not have been made earlier (Plaintiffs needed the deposition of Dr. Funk which was not taken until April 2024 and additional time was needed because of counsel’s vacation and trial scheduling conflicts). (Kurtz Decl. ¶¶ 4-7.) Plaintiffs’ motion to amend is also timely. Code Civ. Proc. § 425.13(a) requires that a motion seeking leave to plead punitive damages must be filed “within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” Two years after the complaint is filed is November 16, 2025, and nine months before the matter is set for trial is June 9, 2025. Plaintiffs’ motion was filed on August 16, 2024. Code of Civil Procedure§ 425.13(a) also requires that supporting evidence prove that “plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” Here, there is a substantial probability that Plaintiffs will prevail on their fraud claim. To prove a claim of fraud, Plaintiffs must show: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Plaintiffs’ evidence establishes all five elements. First, there is a false representation: Dr. Fisher misrepresented to Plaintiffs that Dr. Funk agreed she was not necessary and that he should do the excision himself. Second, since he never received Dr. Funk’s agreement that she be excluded, he had to know his statement was false. Third, since Dr. Fisher participated in the plan to have Dr. Funk do the excision to which Plaintiffs approved, he had to have intended to sway Plaintiffs’ decision by representing the breast cancer specialist agreed. Fourth, Plaintiffs actually relied on Dr. Fisher’s representation, and the extensive history between Plaintiffs and Dr. Fisher made the reliance justifiable. Fifth, the fraud resulted in damages as the excision performed by Dr. Fisher upgraded the phyllodes from benign to borderline, and there was a second unnecessary surgery to remove the cancer cells. Additionally, Plaintiffs had to pay for the excision without the benefit of insurance; by moving the procedure to his surgical center and doing the aesthetic work at the same time, Dr. Fisher transformed a covered procedure into a procedure that was not covered by insurance. Because Plaintiffs have a substantial probability of prevailing on their fraud claim, they have also stated facts to support a claim for punitive damages. Punitive damages are available for conduct that is oppressive, fraudulent or malicious. (Civ. Code § 3294(a),¿(c)(3).) The three standards are in the disjunctive, so only one need be demonstrated. (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1239 (“The words ‘oppression, fraud, or malice’ in¿Civil Code section 3294¿being in the¿disjunctive, fraud alone is an adequate basis for awarding punitive damages. (Citations.)”).) Here, as discussed above, Plaintiffs have established fraud, and accordingly, they have also stated a claim for punitive damages. Dr. Fisher argues there was no misrepresentation because Dr. Funk did agree to have him perform the tumor excision. But the evidence Dr. Fisher relies on does not show that Dr. Funk agreed, only that she was aware Dr. Fisher would be doing the excision alone. (Opp. at 4.) Dr. Fisher also presents evidence that Plaintiffs were aware he would be doing the excision alone. But that is beside the point. (Opp. at 5-7.) Plaintiffs are not claiming they were not told Dr. Fisher would perform the surgery alone. Rather, their claim is that Dr. Fisher misrepresented that Dr. Funk agreed to the process. Based on the foregoing, the Court GRANTS Plaintiffs’ motion for leave to file a second amended complaint. DATED: September 18, 2024 ___________________________ Judge of the Superior Cour
Case Number: 23SMCV05798 Hearing Date: September 18, 2024 Dept: 205 HEARING DATE: September 18, 2024 | JUDGE/DEPT: Moreton/Beverly Hills, 205 | CASE NAME: American Express National Bank v. David Gross | COMP. FILED: December 12, 2023 |
PROCEEDINGS: REQUEST FOR ENTRY OF DEFAULT JUDGMENT MOVING PARTY: American Express National Bank RESPONDING PARTY: David Gross This is a collections case. Plaintiff American Express National Bank issued a credit card to Defendant David Gross pursuant to a credit card agreement. Under the agreement, Defendant was obligated to repay amounts charged on his card. Defendant failed to do so. Defendant’s last billing statement shows an amount owing of $76,590.95. Defendant has not disputed any of the charges on the billing statement. On December 12, 2023, Plaintiff filed the instant action, alleging two claims for account stated and open book account. The Complaint seeks $76,590.95 in damages plus costs of suit. Plaintiff filed a proof of service showing Defendant was personally served on February 9, 2024. Defendant was obligated to respond. He did not do so within the time allowed by law. Plaintiff successfully requested the entry of Defendant’s default, which was entered by the Clerk’s Office on June 7, 2024. Plaintiff requested a default judgment on June 6, 2024. Plaintiff served Defendant by mail with both the Request for Entry of Default and Request for Default Judgment. Default judgment against Defendant for a total of $77,133.99, which is comprised of: (1) $76,590.95, for damages, and (2) $543.04, for costs. Code Civ. Proc. § 585 sets forth the two options for obtaining a default judgment. First, where the plaintiff’s complaint¿seeks compensatory damages only, in a sum certain which is readily ascertainable from the allegations of the complaint or statement of damages, the clerk may enter the default judgment for that amount. However, if the relief requested in the complaint is more complicated, consisting of either nonmonetary relief, or monetary relief in amounts which require either an accounting, additional evidence, or the exercise of judgment to ascertain, the plaintiff must request entry of judgment by the court. In such cases, the plaintiff must affirmatively establish his entitlement to the specific judgment requested.¿ (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 287.) Section 585 also allows for interest, costs and attorney fees, where otherwise allowed by law. (Code Civ. Proc. § 585(a).) Multiple specific documents are required, such as: (1) form CIV 100, (2) a brief summary of the case; (3) declarations or other admissible evidence in support of the judgment requested; (4) interest computations as necessary; (5) a memorandum of costs and disbursements; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code Civ. Proc. § 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys’ fees if allowed by statute or by the agreement of the parties. (CRC Rule 3.1800.) Here, Plaintiff has properly complied with all the substantive and procedural requirements for a default judgment. Substantively, Plaintiff declares via declaration that there have been damages in the amount of $76,590.95, which is supported by a properly authenticated billing statement. A memorandum of costs in the amount of $543.04 is set forth in Item 7 of the CIV-100 form. Procedurally, Plaintiff properly served Defendant more than 30 days prior to requesting entry of default and default judgment, correctly completed JC Form CIV-100 in a manner that would not void or put at issue the entry of default, provided a declaration of non-military status, requested damages in amounts supported by the filings and not in excess of the amount stated in the Complaint, and filed a proposed judgment (JUD-100). Defendant filed an answer after default was entered. Upon the entry of his default, Defendant was out of court, and the filing of his answer was unauthorized and void. (Jones v. Moers (1928) 91 Cal.App. 65, 70.) Defendant must first file a motion to set aside default before he can file his answer. Defendant did not file a motion to set aside. For the foregoing reasons, Plaintiff American Express National Bank’s Request for Default Judgment is GRANTED as to Defendant David Gross. Default judgment in the amount of $77,133.99 is awarded in favor of Plaintiff.
Case Number: 23STCV16690 Hearing Date: September 18, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 SANTA MONICA BAY WOMAN’S CLUB, et al., | Hearing Date: September 18, 2024 FOR LEAVE TO FILE AMENDED |
This case arises from an alleged assault. Plaintiff Dennis Stankie was visiting Defendant Santa Monica Bay Woman’s Club (the “Club”) when he claims an administrator of the Club assaulted him. The unnamed administrator yelled at Plaintiff to “get out” and then pushed him. Plaintiff is appearing in pro per and filed a form complaint with four causes of action for (1) general negligence, (2) intentional tort, (3) premises liability, and (4) elder abuse. Plaintiff then amended the Complaint to substitute Does 1 and 2 with Defendants Becky Upchurch and Peter Abbay. On August 5, 2024, Plaintiff moved for leave to further amend his Complaint to add causes of action for battery, assault, negligent hiring and intentional infliction of emotional distress (“IIED”). The Court denied the motion because Plaintiff failed to provide the required declaration pursuant to California Rules of Court, rule 3.1324, subdivision (b). Plaintiff now moves for reconsideration of the Court’s order denying his motion for leave to amend, submitting the required declaration in support of his motion. REQUEST FOR JUDICIAL NOTICE Plaintiff requests judicial notice of various documents, which are not attached to the request. The bulk of the documents are filings in this action, for which request for judicial notice is unnecessary. Plaintiff may simply call the Court’s attention to the records. The sole document that is not a filing in this case is an “Attorney’s letter on 7-5-24.” The letter is not attached to the request, and the Court cannot properly consider it. Accordingly, the Court denies Plaintiff’s request for judicial notice. Stankie’s reply¿in support of his motion is single spaced and if double spaced would exceed the 10 page limit for replies. Stankie violates Rules of Court, Rules 3.1113(d)¿(“No¿reply¿or closing memorandum may exceed 10 pages”) and¿2.108¿(“The lines on each page must be one and one-half spaced or double-spaced” and only “footnotes, quotations, and printed forms of corporate surety bonds and undertakings may be single-spaced”).) These are material defects, and thus the Court declines to consider the reply. “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code of Civ. Proc., §1008(a).)¿ Plaintiff does not offer a satisfactory explanation for failing to provide his declaration earlier. A motion for reconsideration is properly denied when it is based on evidence that could have been presented earlier, in support of the original motion. (Morris, 144 Cal.App.4th at 1460.) In any event, the declaration still fails to comply with California Rules of Court, rule 3.1324, subdivision (b). The declaration focuses on the amendments to add a negligent hiring and IIED claim, but does not address the proposed addition of claims for assault and battery. The declaration also does not explain why the amendments are necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request for amendment was not made earlier. Accordingly, the Court denies the motion for reconsideration. Based on the foregoing, the Court DENIES Plaintiff’s motion for reconsideration. DATED: September 18, 2024 ___________________________ Judge of the Superior Court
Case Number: 24SMCV00408 Hearing Date: September 18, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 DR. ALBERT CHANG, et al., | Hearing Date: September 18, 2024 martinez’s motion to set aside |
This case arises from a dispute between neighbors over a hedge. Plaintiff Anita Gorwara is the owner of real property located at 15224 Earlham Street, Pacific Palisades, California (the “Property”). In 2021, Plaintiff planted a Ficus hedge row which she claims was entirely on her Property near the property line of the adjacent property, commonly known as 15230 Earlham Street (the “Adjacent Property”). At the time she planted the hedge, the Adjacent Property was a vacant house, having been foreclosed upon by a financial institution. In 2021, Defendants Dr. Albert Chang and Kyong Ae Kim bought the Adjacent Property. The Ficus hedge was already in existence at the time of Defendants’ purchase. Plaintiff claims Defendants attempted to poison the hedge in September 2021, and when that failed, Defendants instructed their gardener to enter the Property and to cut down Plaintiff’s Ficus hedge. Defendants maintain that the Ficus hedge is on their property. This lawsuit ensued. The original complaint alleges seven claims for (1) malicious damage to property (Cal. Civ. Code § 733), (2) trespass, (3) negligence per se, (4) negligence, (5) intentional infliction of emotional distress, (6) injunctive relief and (7) quiet title. Plaintiff then filed a first amended complaint which included as a new defendant, Defendants’ gardener, Carmen Carlos Martinez (“Moving Defendant”). Plaintiff served Martinez with the FAC on June 4, 2024, and then requested entry of his default on July 12, 2024, which the Clerk entered on the same date. This hearing is on Moving Defendant’s motion to set aside entry of default. Moving Defendant argues that Plaintiff agreed to extend any deadline for Moving Defendant to respond until the Court ruled on whether the underlying action should be stayed pending Plaintiff’s appeal of the Court’s order denying Plaintiff’s motion for preliminary injunction. The Court ultimately ruled at a case management conference held on July 29, 2024 that the case is not stayed. There is no opposition filed as of the posting of this tentative ruling. Code Civ. Proc. §473, subd. (b)¿provides for two distinct types of relief from a default -- commonly differentiated as “discretionary” and “mandatory.” “Under the¿discretionary relief provision, on a showing of ‘mistake, inadvertence, surprise, or¿excusable neglect,” the court has discretion to allow relief from default. Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of ‘mistake, inadvertence, surprise, or neglect,’ the court must vacate any ‘resulting default judgment or dismissal entered.’” (Leader v. Health Industries of America, Inc.¿(2001) 89 Cal.App.4th 603, 615-616.)¿ Applications seeking relief under the mandatory provision of¿§473¿must be “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. §473, subd. (b).) The mandatory provision further adds that “whenever relief is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” (Id.) The application for relief must be made no more than six months after the judgment, dismissal, order, or proceeding was taken. (Id.) And the application must be “accompanied by a copy of the answer or other pleading proposed to be filed therein”. (Id.) “It is settled that the law favors a trial on the¿merits. . . and therefore liberally construes¿section¿473.” (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1477.) “Doubts in applying¿section 473 are resolved in favor of the party seeking¿relief from¿default. . . and if that party has moved promptly for¿default relief,¿only slight evidence will justify an order granting such¿relief.” (Id. at 1477-78.) Moving Defendant’s motion to set aside default and default judgment is timely. The motion was filed on August 16, 2024, within six months after default judgment was entered on July 12, 2024. Moreover, mandatory relief is warranted based on Moving Defendant’s attorney’s affidavit of fault. Counsel attests he believed the parties had agreed to stay the action until the Court ruled on whether or not there was a stay pending Plaintiff’s appeal of the Court’s order denying Plaintiff’s motion for preliminary injunction. (Chou Decl. ¶¶ 4, 7.) Whether his belief was reasonable is irrelevant, as even an inexcusable neglect will support mandatory relief. Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492-493 (“[M]andatory relief under¿section 473, subdivision (b), does not require that the attorney neglect be excusable. Indeed, inexcusable neglect is precisely the kind of¿attorney neglect contemplated by¿the provision for mandatory relief under¿section 473, subdivision (b).”).) For the foregoing reasons, the Court GRANTS Defendant Carmen Carlos Martinez’s motion to set aside default. DATED: September 18, 2024 ___________________________ Judge of the Superior Court
Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 DR. ALBERT CHANG, et al., | Hearing Date: September 18, 2024 Defendants DR. ALBERT CHANG AND KYONG AE KIM’S DEMURRER WITH MOTION TO STRIKE PLAINTIFF’S VERIFIED FIRST AMENDED COMPLAINT |
This case arises from a dispute between neighbors over a hedge. Plaintiff Anita Gorwara is the owner of real property located at 15224 Earlham Street, Pacific Palisades, California (the “Property”). In 2021, Plaintiff planted a Ficus hedge row which she claims was entirely on her Property near the property line of the adjacent property, commonly known as 15230 Earlham Street (the “Adjacent Property”). At the time she planted the hedge, the Adjacent Property was a vacant house, having been foreclosed upon by a financial institution. In 2021, Defendants Dr. Albert Chang and Kyong Ae Kim (“Moving Defendants”) bought the Adjacent Property. The Ficus hedge was already in existence at the time of Moving Defendants’ purchase. Plaintiff claims Moving Defendants attempted to poison the hedge in September 2021, and when that failed, Moving Defendants instructed their gardener to enter the Property and to cut down Plaintiff’s Ficus hedge. Moving Defendants maintain that the Ficus hedge is on their property. This lawsuit ensued. The original complaint alleges seven claims for (1) malicious damage to property (Cal. Civ. Code § 733), (2) trespass, (3) negligence per se, (4) negligence, (5) intentional infliction of emotional distress (“IIED”), (6) injunctive relief and (7) quiet title. Plaintiff then filed a first amended complaint which now adds as a new defendant, Moving Defendants’ gardener, Carmen Carlos Martinez. This hearing is on Moving Defendants’ demurrer with motion to strike. Moving Defendants argue (1) Plaintiffs’ claim for “malicious damage to property” is not supported by Cal. Civ. Code § 733; (2) Plaintiff’s claim for negligence per se fails because it is not an independent cause of action but an evidentiary doctrine; (3) Plaintiff’s IIED claim fails because emotional distress damages are generally not recoverable for property damage; (4) Plaintiff’s injunctive relief claim fails because it is a remedy and not an independent cause of action, and (5) Plaintiff’s quiet title claim fails because Plaintiff does not include the legal description of the property and the date as to which the determination of the rights of the property is sought as required by Code Civ. Proc. § 761.020. Moving Defendants also move to strike Plaintiff’s claim for punitive damages because Plaintiff has not alleged malice, oppression or fraud, and Plaintiff’s request for attorneys’ fees because Plaintiff has not alleged any contract or statute authorizing such a claim. “[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., §436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., §436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., §437.)¿ Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Code Civ. Proc. §§ 430.41 and 435.5 requires that before the filing of a demurrer or motion to strike, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer or motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike. (Code Civ. Proc. §§ 430.41(a), 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. §§ 430.41(a)(2), 435.5(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. §§ 430.41(a)(3), 435.5(a)(3).) Moving Defendants submit the Declaration of Christine Chou which fails to show the parties met and conferred by telephone or in person. Rather, counsel sent a meet and confer letter, and the parties exchanged emails. While Moving Defendants requested a call, Plaintiff did not respond to Moving Defendants’ request. The Court admonishes Plaintiff to respond to meet and confer requests. In any event, the Court cannot overrule a demurrer or deny a motion to strike based on an insufficient meet and confer. (Code Civ. Proc. §§430.41(a)(4) and 435.5(a)(4).) Motions¿to¿strike¿and¿demurrers¿must¿be¿filed¿as¿separate¿documents. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020 ¶7:162.1.) Moving Defendants filed a single omnibus motion. Accordingly, their papers are procedurally defective. Notwithstanding, in the interest of moving the case forward, the Court will rule on the demurrer and motion to strike on their merits. But Moving Defendants should not rely on the Court’s indulgence in the future. Plaintiff argues Defendants’ demurrer is untimely because it was not filed within 30 days after service of the Complaint. Defendants concede their demurrer is untimely but argues the Court has discretion to increase the time for filing a demurrer “in furtherance of justice and on any terms that may be proper.” The Court exercises its discretion to consider the untimely demurrer. “[S]ection 473, subdivision (a)(1) allows the court to increase the time for filing a demurrer in furtherance of justice and on any terms that may be proper.” (Jackson v. Doe (2011) 192 Cal. App. 4th 742, 750.) The trial court may exercise this discretion so long as its action does “not affect the substantial rights of the parties.” (McAllister v. Cty. of Monterey (2007) 147 Cal. App. 4th 253, 282) “There is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved, and where, as here, the late filing was a mere irregularity; the granting or denial of the motion is a matter which lies within the discretion of the court.” (McAllister v. Cty. of Monterey (2007) 147 Cal. App. 4th 253, 281-282.) The Court concludes the late filing was a mere irregularity based on Defendants’ reasonable belief that the parties had informally agreed to not litigate the matter pending the Court’s ruling on a formal stay. Additionally, Plaintiff has not shown how the Court’s hearing the demurrer will substantially affect her rights. Malicious Damage to Property Moving Defendants argue that Plaintiff has not properly stated a claim for a violation of Cal. Civ. Code §733. Section 733 states: “When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisposed of, and no valid direction for its accumulation is given, such income belongs to the persons presumptively entitled to the next eventual interest.” This statute has no bearing to the present facts. Plaintiff probably meant to cite to Cal. Civ. Proc. Code §733 which provides that “[a]ny person who cuts down or carries off any wood or underwood, tree, or timber, or girdles or otherwise injures any tree or timber on the land of another person … is liable to the owner of such land … for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.” The court is obligated to look past the form of a pleading to its substance. Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief. (See, e.g.,¿Williams¿v.¿Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)¿“It is not what a paper is named, but what it is that fixes its character.” (Parnham¿v.¿Parnham¿(1939) 32 Cal.App.2d 93, 96.) Accordingly, that Plaintiff cited to the incorrect statute is not a basis to sustain the demurrer. Instead, our task is to determine whether Plaintiff has adequately stated a claim under Cal. Civ. Proc. Code §733. Moving Defendants argue Plaintiff has not, because she has not sufficiently alleged malice or intent. The Court disagrees. “Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th 336, 355.) One can infer intent, and therefore, whether the defendant acted intentionally, from surrounding facts and circumstances of the offense. (M.N. v. Morgan Hill Unified School Dist. (2018) 20 Cal.App.5th 607, 622.) One’s actions are circumstantial evidence of his intent.¿ (Fenton v. Bd. of Directors (1984) 156 Cal.App.3d 1107, 1117.) So it is here. Plaintiff has alleged Defendants poisoned her hedge and sent their gardener to cut down the hedge on her property. (FAC ¶¶ 9, 14.) Defendants’ malicious intent may be inferred from these actions. Moving Defendants also argue that Plaintiff fails to state how she was harmed, the manner of harm, or the amount of her damages. The Court agrees. “If the recovery of money or damages is demanded, the amount demanded shall be stated.” (Code Civ. Proc. § 425.10(a)(2).) Because Plaintiff has failed to state the amount of her damages, the Court sustains the demurrer to her malicious damage claim. Plaintiff’s negligence per se claim alleges a violation of Civ. Code §733. For reasons stated above, that is likely a miscite as the facts alleged here do not support a violation of §733. Regardless, the negligence per se claim is subject to demur because “[n]egligence per se is an evidentiary doctrine, rather than an independent cause of action.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210-1211; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286 (“[T]o apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute.”).) As both the courts in Jones and Quiroz held, Plaintiff’s third cause of action for negligence per se is not cognizable. Therefore, the Court sustains the demurrer to Plaintiff’s negligence per se claim without leave to amend. Citing Erlich v. Menezes (1999) 21 Cal.4th 543, 554, Moving Defendants argue that Plaintiff’s IIED claim fails because emotional distress damages are not recoverable in connection with property damage. The Court disagrees. Erlich v. Menezes¿and other cases disallowing emotional distress damages in cases of property damage involved negligent infliction of emotional distress. (Id. (negligent construction of home does not support emotional distress damages);¿Butler-Rupp v. Lourdeaux¿(2005) 134 Cal.App.4th 1220, 1228–1229¿(negligent breach of lease of storage space);¿Camenisch v. Superior Court¿(1996) 44 Cal.App.4th 1689, 1693¿(negligent infliction of emotional distress based on legal malpractice);¿Smith v. Superior Court¿(1992) 10 Cal.App.4th 1033, 1040¿(“mere negligence will not support a recovery for mental suffering where the defendant's tortious conduct has resulted in only economic injury to the plaintiff”).)¿ The rule does not apply to intentional infliction of emotional distress. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 203-204.) “[R]ecovery for emotional distress caused by injury to property is permitted only where there is a preexisting relationship between the parties or an intentional tort.” (Lubner v. City of Los Angeles¿(1996) 45 Cal.App.4th 525, 532 (emphasis added); see¿Cooper v. Superior¿Court¿(1984) 153 Cal.App.3d 1008, 1012 (no recovery for emotional distress arising solely out of property damage “absent a threshold showing of some preexisting relationship or intentional tort”).) IIED is an intentional tort. (Ragland, 209 Cal.App.4th at 203-204.) If Plaintiff successfully pleads and proves the elements, Plaintiff would be entitled to recover of emotional distress damages. Moving Defendants next argue that Plaintiff has not sufficiently alleged outrageous conduct. The Court disagrees. “For conduct to be considered outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”¿(Christensen v. Superior Court¿(1991) 54 Cal. 3d 863, 903.) Here, Plaintiff alleges Moving Defendants maliciously poisoned her Ficus hedge and directed their gardener to enter Plaintiff’s property to maliciously cut down and damage Plaintiff’s Ficus hedge. (FAC ¶¶ 9, 14.) These allegations are sufficient to support a finding of intentional trespass which can constitute extreme and outrageous conduct. Because intentional trespass can support a claim for punitive damages which requires despicable conduct, Haun v. Hyman (1963) 223 Cal.App.2d 615, 620, it must follow that it can also support a finding of extreme and outrageous conduct. Both despicable and outrageous conduct are defined as conduct that would not be tolerated in a civilized society. Moving Defendants also argue that Plaintiff has not sufficiently alleged she suffered severe emotional distress. On this point, the Court agrees. Severe emotional distress is defined as “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.”¿ (Fletcher v.¿Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) Moreover, to¿sufficiently¿state this element, plaintiff must set forth facts indicating the nature and extent of any¿alleged¿mental suffering.¿ (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)¿Conclusory allegations that plaintiff suffered¿severe¿emotional¿distress, without more, are held insufficient. (Id.; see also¿Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.) Here, there is a single conclusory allegation that “Plaintiff has suffered severe emotional distress”. There is no description of the nature and extent of Plaintiff’s distress. Accordingly, the Court sustains the demurrer to Plaintiff’s IIED claim with leave to amend. Moving Defendants argue that Plaintiff’s claim for injunctive relief fails because injunctive relief is not a cause of action. The Court agrees. “Injunctive relief is a remedy not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65; accord, City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 (“A permanent injunction is merely a remedy for a proven cause of action. It may not be issued if the underlying cause of action is not established.”’); see also Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App4th 604, 618; McDowell v. Watson (1997) 59 Cal.App.4th 1155,1159. Therefore, the Court sustains the demurrer to the sixth cause of action for injunctive relief without leave to amend. Moving Defendants argue that Plaintiff have not properly alleged the requirements for a quiet title action. The Court agrees. Code Civ. Proc. § 761.020 provides the requirements for a quiet title cause of action as follows: “1. A description of the property that is the subject of the action. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. 2. The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. 3. The adverse claims to the title of the plaintiff against which a determination is sought. 4. The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of reasons why a determination as of the date is sought. 5. A prayer for determination of title of the plaintiff against adverse claims.” Here, Plaintiff failed to include both the legal description of the property and the date as of which the determination of rights of the property is sought, as required by Code of Civ. Proc. §761.020. Therefore, the Court sustains the demurrer to the seventh cause of action for quiet title, with leave to amend. Moving Defendants move to strike Plaintiff’s claim for punitive damages in connection with her claims for malicious damage to property and IIED as well as her prayer for relief. Moving Defendants argue Plaintiff has not alleged malice, oppression or fraud. The Court disagrees. Civ. Code § 3294 (a)¿authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…” “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”¿ (Civ. Code § 3294 (c)(2).) “Malice” is defined to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”¿(Civ. Code § 3294 (c)(a).) Here, Plaintiff alleges that Moving Defendants engaged in¿trespass¿onto her property, intentionally destroying her ficus hedge. A claim for intentional¿trespass¿has long been held to support a claim for¿punitive damages. (See¿Haun, 223 Cal.App.2d at 620 (“Where a trespass is committed from wanton or malicious motives, or a reckless disregard of the rights of others, or under circumstances of great hardship or oppression, it is clear that¿punitive damages¿may be awarded.”); 6 Witkin, Summary (11th ed. 2020), Torts, §1759 (willful trespass or intentional injury to real property are occasionally grounds for an award of punitive damages).)¿ The motion to strike the claim for punitive damages accordingly is denied. Defendants move to strike Plaintiff’s request for attorneys’ fees as not authorized by contract or statute. The Court agrees. California generally follows what is commonly referred to as the “American Rule,” which provides that each party to a lawsuit must ordinarily pay his or her own¿attorney fees. (See, e.g.,¿Trope v. Katz¿(1995) 11 Cal.4th 274, 278.) The¿American Rule¿is codified in¿Code Civ. Proc. § 1021, which states in¿relevant part:¿“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties … .”¿ Pursuant to § 1021, attorneys’ fees are recoverable only when authorized by contract or statute. (Harbor City Discount Auto Center, Inc. v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 886.) Here, Plaintiff prays for “costs of litigation, including statutory attorney fees” but has failed to allege any legal basis for seeking attorney fees, including an agreement between the parties or a statute entitling Plaintiff to an award of attorneys’ fees, if any. Plaintiff’s Opposition does not address this issue, and therefore, Plaintiff is deemed to have conceded on this point. Accordingly, the Court grants the motion to strike Plaintiff’s claim for attorneys’ fees. Based on the foregoing, the Court SUSTAINS IN PART and OVERRULES IN PART the demurrer with 20 days’ leave to amend and DENIES IN PART and GRANTS IN PART the motion to strike without leave to amend. DATED: September 18, 2024 ___________________________ Judge of the Superior Court
Case Number: 24SMCV00933 Hearing Date: September 18, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 RAR2-MARINA MARKETPLACE, LLC, PHENIX SALON SUITES, et al., | Hearing Date: September 18, 2024 defendant JOSEPH HALLBERG’S |
This is an unlawful detainer action. The real property at issue is located at 13455 Maxella Avenue, Space No. 206-260 also known as Space No. 260B, located in the City of Marina Del Rey in the County of Los Angeles (the “Premises”). (Compl. ¶ 7.) Plaintiff RAR2-Marina Marketplace LLC leased the Premises to Phenix Salon Suites, Marina Del Rey, LLC pursuant to a written commercial lease agreement (“Lease”). (Id. ¶ 8.) Phenix then sublet the Premises to Defendants Joseph Hallberg, Linda Adams, and Michael Brown who have been at the space for the past year. On February 29, 2024, Plaintiff initiated an unlawful detainer action against Phenix and all occupants. On May 2, 2024, Hallberg filed a motion to quash, which was denied as untimely on May 23, 2024. Thereafter, Hallberg filed a demurrer on May 29, 2024, which was overruled on July 5, 2024 because a default had already been entered on May 23, 2024. Hallberg then attempted to file his answer on July 14, 2024, but it was rejected because the default had already been entered. This hearing is on Defendant Joseph Hallberg’s motion to vacate default. Hallberg argues that default is void because it was entered while his time to file a responsive pleading had not yet passed. Hallberg claims he had 15 days from the Court’s denial of his motion to quash, or June 7, 2024 to file his responsive pleading. He filed a demurrer on May 29, 2024. When the demurrer was overruled on July 14, 2024, Hallberg claims he then had an additional 10 days (or by July 24, 2024) to file his answer. Hallberg tried to file his answer on July 14, 2024 but it was rejected because of the default. The lease naturally expired on April 30, 2024, so setting aside the judgment would make no difference. For this reason, there is no actual controversy on which to rule. When a tenant’s¿lease¿expires¿and the tenant presents¿no¿basis for claiming a right to possession after the date the lease expired,¿there is no longer a live¿controversy¿between the parties as to the right of current possession. If there is no live controversy between the parties, then the motion is moot. Accordingly, the Court denies the motion to set aside default as moot. For the foregoing reasons, the Court DENIES Defendant Joseph Hallberg’s motion to vacate default. DATED: September 18, 2024 ___________________________ Judge of the Superior Court
Case Number: 24SMCV01821 Hearing Date: September 18, 2024 Dept: 205 Superior Court of California County of Los Angeles – West District Beverly Hills Courthouse / Department 205 | Hearing Date: September 18, 2024 DEFENDANT JERRY WITSIE’S MOTION TO QUASH SERVICE OF SUMMONS JURISDICTION OR ALTERNATIVELY TO STAY ACTION FOR FORUM NON |
This action involves a dispute over a car. Plaintiff Regal Motors, LLC is a Montana limited liability company. (Compl. ¶ 2.) Defendant Jerry Witsie resides in Las Vegas, Nevada. (Id. ¶ 3.) Plaintiff owns a 2013 Rolls-Royce Phantom Drophe, Vehicle Identification Number SCA682D57DUX751801 (the “Car”). (Id. ¶ 5.) Plaintiff claims it gave Defendant “conditional permission” to possess the Car. (Id.) And when Plaintiff demanded the return of the Car, Defendant refused. (Id. ¶6.) Defendant maintains the Car was a gift. This action ensued. The operative complaint alleges two claims for (1) claim and delivery, and (2) conversion. This hearing is on Defendant’s motion to quash service of summons for lack of personal jurisdiction. Defendant argues the Court lacks personal jurisdiction because Defendant does not work, live or own any property in California, and the Car on which the claims are based is registered in Montana and is located in Nevada. In the alternative, Defendant argues the Court should stay the action on the grounds of forum non conveniens because a balance of private and public factors weigh in favor of litigating the case in Nevada. The Court sustains Defendant’s Objection Nos. 1-6 to the Declaration of Leslie Valentino. General jurisdiction requires¿“substantial . . . continuous and¿systematic” contacts¿with California, i.e., the defendant’s contacts with the forum are so wide-ranging that they take the place of a physical presence¿in the state. (Vons Companies Inc. v. Seabest Foods, Inc. (1996) 16 Cal.4th 434, 452.) Specific jurisdiction exists where contacts are insufficient for¿general jurisdiction, but the contact is related to the cause of action presented. (Epic Communications, Inc. v. Richwave Technology, Inc.¿(2009) 179 Cal.App.4th 314, 327.) Although the defendant¿is the moving party on a motion to quash service of process, the burden of proof is on the plaintiff in opposing the motion: “[W]hen jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that ‘minimum contacts’ exist between defendant and the forum state to justify imposition of personal jurisdiction.” (Mihlon v. Sup.Ct. (Murkey)¿(1985) 169 Cal.App.3d 703, 710;¿Floveyor Int'l, Ltd. v. Sup.Ct. (Shick Tube-Veyor Corp.)¿(1997) 59 Cal.App.4th 789, 793;¿Elkman v. National States Ins. Co.¿(2009) 173 Cal.App.4th 1305, 1313.) The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios)¿(1988) 206 Cal.App.3d 1222, 1232.) If plaintiff meets this burden, “it becomes the defendant’s burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Buchanan v. Soto¿(2015) 241 Cal.App.4th 1353, 1362;¿Swenberg v. Dmarcian, Inc.¿(2021) 68 Cal.App.5th 280, 291.)¿ The Court lacks general jurisdiction over Defendant. He has no contacts with the State that can be characterized as systematic or continuous sufficient to conclude he is “at home” in California. Defendant is an 88 year old who lives full time in Las Vegas, Nevada. (Wiltsie Decl. ¶¶ 2-3.) He has never worked or lived in California and has never owned any property in California. (Id. ¶¶ 3-5.) The Court also lacks specific jurisdiction. For specific jurisdiction, “courts consider the relationship among the defendant, the forum and the litigation.” (Snowney v. Harrah’s Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062.) A court may exercise specific jurisdiction over a nonresident defendant only if: “(1) the defendant has purposefully availed himself or herself of forum benefits; (2) the controversy is related to or arises out of the defendant’s contacts with the forum, and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.” (Id.) Here, there is no evidence Defendant purposefully availed himself of forum benefits. The Car that is the subject of the parties’ dispute, is registered in Montana (Compl. ¶ 5), and is currently located in Nevada. (Wilsie Decl. ¶¶ 7-8.) Defendant took delivery of the Car in Las Vegas, Nevada. (Id.) Plaintiff submits the declaration of Leslie Valentino in support of its opposition. While Ms. Valentino’s declaration states she has personal knowledge, there are no facts stated that demonstrate she has personal knowledge. (Snider v. Snider (1962) 200 Cal.App.2d 742, 754 (“Where the facts stated do not themselves show it, such a bare statement [that the affiant has personal knowledge] has no redeeming value and should be ignored.”).) Ms. Valentino does not say who she is in relation to Plaintiff (other than describing herself as a “representative”), or how or why she has personal knowledge of the facts stated in her declaration. As a result, her declaration does not provide any admissible evidence and must be disregarded. However, even if the Court were to consider the declaration, it still would not support Plaintiff’s position. Plaintiff argues that the “entire transaction” took place in California, where members of Plaintiff reside, and the Car was shipped from California to Nevada. Plaintiff’s declaration, however, does not mention how the transaction transpired or that it even took place in California. Nor does the declaration show Defendant had any dealings with Plaintiff’s California members. Plaintiff also argues that it suffers harm in California because the Car was being used by its members in California. Under the “effects test,” which is applied to the purposeful availment prong, a plaintiff must show that: (1) that defendant committed an intentional act; (2) expressly aimed at the forum state; and (3) causing harm that the defendant knows is likely to be suffered in the forum state. (Jewish Defense Org., Inc. v. Sup. Ct. (1999) 72 Cal.App.4th 1045, 1057). Plaintiff’s declaration fails to show that Defendant knew any harm was likely to be suffered in California particularly since Plaintiff is a Montana limited liability company. Because the first and second requirement for specific jurisdiction are not met, the Court will not go on to consider the third requirement. Simply put, there is no basis to exercise jurisdiction over Defendant, and the Court declines to consider the alternative motion to stay for forum non-conveniens. Based on the foregoing, the Court GRANTS Defendant’s motion to quash service of summons for lack of personal jurisdiction. DATED: September 18, 2024 ___________________________ Judge of the Superior Cour
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